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Thursday, 14 November 1985
Page: 2129


Senator HARRADINE(10.25) —in reply-Neither the Minister for Community Services, Senator Grimes, nor Senator Archer has addressed himself adequately to the two matters of principle which I described to the Senate last night as being most important in motivating me to move for the disapproval of Remuneration Tribunal Determination No. 11 of 1985. Members of the Senate will recall that yesterday I indicated that the two issues of concern-the two matters of great principle-were the rights of the Parliament to exercise untrammelled scrutiny and control of delegated legislation and the need for the Parliament to uphold its own laws and its own view on marriage.

Those were the two questions of principle which I put forward last night as being the basis for this disapproval. Neither of those bases has been undermined by the opposition of Senator Grimes and Senator Archer. In fact, Senator Grimes's whole address was based upon an irrelevancy, and that irrelevancy is what is his view or my view or anybody else's view of marriage. I was talking about the need for the Parliament to uphold its own view about marriage, which is expressed in legislation. I say to Senator Grimes that I have never been one of those who have attempted to emotionalise or personalise this subject, and he knows it. I invite him to show me where I have done that. If I have done it I will apologise, but I sincerely cannot recall ever personalising this question. Indeed, I have been asked by reporters whether I knew which member of parliament had taken which de facto partner overseas. I have stated repeatedly that that is not the question. The question is a matter of principle.


Senator Grimes —With respect, I did not accuse you of doing that, nor would I. I was talking about the emotive language that was used. I did not say that you would do anything like that.


Senator HARRADINE —As far as I know, I have never used the word `floosie'. I have used the accurate term `de facto'. I do not know what other word can be used on that question. Senator Grimes mentioned that the determination does not use the word `de facto'. I agree that the determination is rather intriguing in its wording. If it does not mean de facto in the normal sense of that word, what does it mean? The determination states:

. . . for the purpose of this entitlement `nominee' means a person with whom the senator or member has established a bona fide, stable domestic relationship . . .

Either that is a de facto or it extends to a homosexual partner. It does not say. Unless one says that it is a de facto, one is really saying that it extends to homosexual partners. I do not know whether the Tribunal means that or whether it does not mean it. We are really talking about de facto relationships as distinct from de jure relationships; that is, those which are undertaken in accordance with a contract which is part of the law of the Commonwealth and the States. I do not use that term other than to distinguish it from de jure relationships. In regard to what Senator Grimes has said, quite clearly I understand that there are persons who are in such relationships as described by him. There are other persons in other de facto relationships who are not as described by him. But it is not for me or for him to judge who is in a satisfactory de facto relationship or who is not in a satisfactory relationship. It is a question of what the law of this Commonwealth says about marriage.

What does the law of the Commonwealth say about marriage? It describes and defines marriage as the union of a man and a woman to the exclusion of all others, voluntarily entered into for life. That is the definition of marriage contained in our Commonwealth laws. It also states that marriage and family life have been basic to the strength of our society for a long time. The Parliament, in the Family Law Act, has placed great stress on their importance. They are not my words. They are the words contained in Regulation 39 (5) (a) under the Marriage Act which an authorised celebrant must give to persons intending marriage. So the Parliament has told authorised marriage celebrants to say to persons intending to get married that the Parliament has placed great stress on the importance of marriage and family life.


Senator Coates —It is not compulsory.


Senator HARRADINE —No, it is not compulsory. I will come to that in a moment, Senator. That is what we have told persons intending to get married. So we are talking about the law of this nation. We are not talking about a person's personal options or preferences. As Senator Coates said, it is not compulsory. Senator Grimes has said that there are a variety of personal reasons for people not getting married. The interesting thing is that the senior private secretary to the Special Minister of State, Mr Young, sent a letter to Dr Parker, the Secretary of the Queensland Council of Churches, stating that Mr Young had in mind a particular class of de factos. I quote what Mr Young's senior private secretary said:

where a single or separated member has not married because of personal preference or legal or social circumstance.

What are the legal or social circumstances? It could well be that there is a party who is legally married to the member of parliament. If we do not disapprove of this, what we are virtually saying is that despite the law we will now confer an entitlement for the member of parliament to take his or her de facto overseas and not his or her spouse. That is what I am saying about where this really leads us, if we analyse what we are saying.

I again emphasise that I am not interested in who has a de facto and who has not. As a matter of fact, I received a letter from a constituent which pointed out that a freedom of information search had unearthed which members of parliament had de factos and who did not. For the benefit of honourable senators I read what I said to that constituent:

Your letter 18 April 1985 enclosing FOI material and names of members of parliament who have travelled overseas accompanied by their de factos at public expense has been brought to my attention. I have made it perfectly clear that it is not my desire to know or be informed of the personal details of members of parliament in this regard. This attitude has been constantly expressed by me in public debate and I do not wish to receive the information you have supplied. I therefore return the attachments to your letter of 18 April herewith.

I am surprised that the point of the argument has been missed entirely. The point of concern is not who or how many members of parliament have availed themselves of the decision of the Government or of the Tribunal. The attempt of the Government and of the Tribunal to act as legislative pace setters in this area and to grant equality of status to de factos compared with married spouses, whether or not they carry with them an eligibility for financial subsidy by the taxpayer, involve a matter of great principle and strike at the existing legislative recognition of marriage.

No doubt I may have lost some votes by expressing that point. But so far as I am concerned, and I make it perfectly clear--


Senator Grimes —I do not think he ever voted for you.


Senator HARRADINE —As a matter of fact, it was not a he. I make it perfectly clear that that is not the point. I respect the viewpoints of other people and I hope that my colleagues in the Senate and in the House of Representatives understand that. I also acknowledge that there are people in the community living in de facto relationships which have been recognised by the Parliament. As Senator Grimes would know, that recognition initially devolved-this is what I found from research that I carried out last year-from the necessity to recognise de facto relationships in the social security area, particularly in respect of pensions. If the law did not recognise such relationships in this area two people living in a de facto situation would each be able to receive the single pension and thus have a greater total pension than would a legally married couple. Of course, other pieces of legislation are based on that line of reasoning. In almost all cases the community has made a tolerant gesture to those who have not yet grasped the breadth, beauty and importance of the institution of marriage to society. Nothing that I say here should be taken as an expression of opposition to that sort of tolerant and understanding gesture by society.


Senator Coates —You don't have to be paternalistic about it.


Senator HARRADINE —I hope I am not being paternalistic. But we are dealing here with the question of whether or not the Parliament should uphold its own laws relating to marriage and whether or not the Parliament and parliamentarians should adopt their responsibility to give a lead in areas of public policy which underpin the law.

I pass to the question of the capacity of this Parliament to scrutinise. I believe that the capacity of Parliament to scrutinise this question has been circumvented by the decision of the Tribunal to lump this matter of great public importance in with its determination dealing with stamp entitlements, charter aircraft, cars to and from the Parliament, et cetera. I cannot accept what Senator Archer says, nor what Senator Grimes inferred, that in agreeing to this motion of disallowance we would reject all members' and senators' entitlements. The plain fact is that we will not.

Let me explain to the Parliament what the effect of this disallowance motion would be. It would have the effect of disallowing determination No. 11. The entitlements under that determination would then be those which were made in 1984. One would go back to the 1984 determination in respect of those entitlements. A number of honourable senators have been concerned that if this determination is disallowed we will not be able to get our fares paid to and from Canberra, our daily allowance, or whatever. That will not be the case. In fact, there are very few issues or problems that would arise if this determination were disallowed. The only area where there would be a possible problem is in the amounts available for charter aircraft and drive-yourself vehicles, and also in the area of members and senators from the Northern Territory going to Christmas Island. They are the only anomalies that would arise. They could be immediately rectified by the Tribunal which, in accordance with its own Remuneration Tribunal Act, can of its own accord or at the request of the Minister make a particular determination. I hope it is very clear that there will not be the dramatic effect that is thought to be the case. I know that a number of members of parliament consider that that is not so, but that is the advice I have received.

Therefore, by disapproving this determination of the Remuneration Tribunal Review we will be saying two things to the Remuneration Tribunal. First, we will be saying: `We, the Parliament, will not permit you, the Tribunal, to exercise delegated authority in such a manner as to circumvent the rights of Parliament to adequate scrutiny and ready control over your delegated authority'. Secondly, we will be saying: `We, the Parliament, do not accept that you, the Tribunal, should set yourself up as a legislative pacesetter by conferring equality of status for de factos by comparison to legally married spouses in regard to members of parliament without the right of the Parliament readily to determine that issue'. So far as the first point is concerned, I am surprised that members on both sides of the Parliament who have expressed their views very strongly about the need for this Parliament to scrutinise delegated legislation are not supporting this motion, which is designed to do that. Why are they not supporting it? Can they not see that this is an opportunity to press the Tribunal to exercise its delegated authority in a proper manner and not to deny us the right to proper scrutiny?


Senator Coates —Perhaps our opinion is that it is doing it in a proper manner.


Senator HARRADINE —Is it? Senator Coates says that perhaps it is the opinion that the Tribunal is acting in a proper manner. Let me explain to Senator Coates that it is virtually impossible, as honourable senators can now see, to have this matter properly determined. The whole point is that one cannot reject part of this determination. It is not as though the Tribunal has to put its decisions on all the questions in one determination. It does not do that now. It puts, say, salaries and allowances in a separate determination.


Senator Coates —The Act requires that.


Senator HARRADINE —No, it does not require it. This is an important point and the Senate Standing Committee on Regulations and Ordinances should recognise it. It is also important for the other committees of this Parliament. Sub-section 7 (4) (b) refers to significantly related matters; that is, significant in relation to matters which are contained in sub-section 7 (1), which deals with allowances for members of parliament in the performance of their functions. It says that the Tribunal shall inquire into specifically related matters and determine or report on them. As I said last night, the letter of the Special Minister of State of 31 January 1985 referred to nine significantly related matters. My clear advice is that any of those significantly related matters could have been dealt with by way of a separate determination. The Tribunal chose not to do so and, therefore, it has made it very difficult for the Parliament to make a decision about this matter of great principle.

I am disappointed that those people who have expressed their view to the thousands of Australians who have objected to this decision and who have been affronted at the decision of the Tribunal to place de factos on the same status as legally married spouses have not stood up and made that very clear. Let me ask them how they will make that an issue to be determined by the Parliament. How will that be done? There is no answer.


Senator Robertson —It is not to discriminate against a member or senator in the matter. I think you are looking at it from the wrong end. You should look at it as the right of the senator or member.


Senator HARRADINE —Does the honourable senator mean the right to move for the disallowance?


Senator Robertson —I mean his right in terms of taking the person he wants to take overseas.


Senator HARRADINE —Am I hearing correctly? Is it a question of the right of the senator or member to take the person he or she wants to take overseas? Is that what the Tribunal says?


Senator Robert Ray —No, but it should say that.


Senator HARRADINE —That might be Senator Robert Ray's view, but it may not be the view--


Senator Robertson —I think the vote will indicate that it is a view that is fairly widely held.


Senator HARRADINE —Is that Senator Archer's view?


The ACTING DEPUTY PRESIDENT (Senator Colston) —Order! This is not Question Time.


Senator HARRADINE —I would be interested to know. Senator Robertson said, before I asked what was Senator Archer's view, that the Senate's attitude on this question will be indicated by the vote; that is, the Senate will vote on this issue because it believes that anybody can be taken overseas by a member of parliament.


Senator Robertson —That is not what I said. That is woolly thinking.


Senator HARRADINE —What did Senator Robertson say?


Senator Robertson —I am talking about the rights of the individual senator. That is what we ought to be discussing.


Senator HARRADINE —I agree but it cannot be discussed here in a manner which will properly determine the issue.


Senator Robertson —But that is what you are attempting to do. You are attempting to impose what you feel on other people.


Senator HARRADINE —That is not the point. The Parliament has a view about marriage. That view is expressed in the Marriage Act. The last time that we discussed the Marriage Act I challenged the Leader of the Government in the Senate (Senator Button) to amend the Marriage Act if he thought that that definition was not the view of the Parliament. I point out for the benefit of Senator Robertson that Senator Button himself said on 11 October 1984:

I have accepted that the issues in this Bill-

that is, my Bill-

have to be addressed by this Parliament. That can be done in one way or another, be that by his Bill or to move to disallow the regulations.

I tried to use the Bill and the attempt was unsuccessful because the Bill still languishes on the Notice Paper. Now I have gone the other way that Senator Button suggested; that is, moved to disallow this determination. Now, so that the issue is not properly addressed, the excuse is used by the Opposition and some members of the Government that if we do this, disaster upon disaster, it will affect other entitlements of members of parliament. If we do not do it this time and have the issue clearly before us, I give an undertaking that I will ensure that the next time a Remuneration Tribunal determination is made, if it fails to address the issue, I will seek to have it disapproved and press ahead with a private member's Bill.


The ACTING DEPUTY PRESIDENT (Senator Colston) —Order! The honourable senator's time has expired.

Question resolved in the negative.